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Case 08-04979-dd

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UNITED STATES BANKRUPTCY COURT DISTRICT OF SOUTH CAROLINA

IN RE:

)

CHAPTER 11

)

 

Affinity Technology Group, Inc.,

)

Lead Case No. 08-04979-dd

 

)

 

Debtor.

)

IN RE:

)

)

 

decisioning.com, Inc.,

)

Case No.: 08-05263-dd

 

)

 

Debtor.

)

Jointly Administered

NOTICE OF DEBTORS’ MOTION TO DISMISS CHAPTER 11 BANKRUPTCY CASES

TO: All Creditors and Parties in Interest:

YOU ARE HEREBY NOTIFIED THAT THE Debtors are moving the Court for Orders dismissing their Chapter 11 Bankruptcy cases (the “Motion”), which Motion is attached hereto and was filed with the Court on April 21, 2009.

TAKE FURTHER NOTICE that any response, return and/or objection to this application should be filed with the Clerk of the Bankruptcy Court no later than twenty (20) days from service* of this application and a copy must be simultaneously served on all parties in interest.

TAKE FURTHER NOTICE that no hearing will be held on this application unless a response, return and/or objection is timely filed and served, in which case, the Court will conduct a hearing on June 2, 2009 at 10:30 a.m. at the J. Bratton Davis United States Bankruptcy Court, 1100 Laurel Street, South Carolina 29201. No further notice of this hearing will be given.

*Service Date: April 22, 2009

Address of the Court:

United States Bankruptcy Court 1100 Laurel Street Columbia, SC 29201

McCARTHY LAW FIRM, LLC

BY:

/s/Daniel J. Reynolds, Jr.

G. William McCarthy, Jr., I.D.#2762 Daniel J. Reynolds, Jr., I.D.#9232 Sean P. Markham, I.D.#10145 Attorneys for the Debtor 1715 Pickens Street (29201) Post Office Box 11332 Columbia, South Carolina 29211-1332 Tele: (803) 771-8836 Fax: (803) 779-0267

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Case 08-04979-dd

Doc 55

Filed 04/21/09

Document

Entered 04/21/09 10:08:22 Page 2 of 4

Desc Main

UNITED STATES BANKRUPTCY COURT DISTRICT OF SOUTH CAROLINA

IN RE:

)

CHAPTER 11

)

 

Affinity Technology Group, Inc.,

)

Lead Case No. 08-04979-dd

 

)

 

Debtor.

)

IN RE:

)

)

 

decisioning.com, Inc.,

)

Case No.: 08-05263-dd

 

)

 

Debtor.

)

Jointly Administered

MOTION TO DISMISS CHAPTER 11 CASES OF AFFINITY TECHNOLOGY GROUP, INC. AND DECISIONING.COM, INC. AND MEMORANDUM IN SUPPORT

Affinity Technology Group, Inc. (“Affinity”) and decisioning.com, Inc. (“Decisioning”),

as debtors and debtors-in-possession in this case (hereinafter, the “Debtors”) hereby move the

Court for orders dismissing their Chapter 11 Cases pursuant to 11 U.S.C. §1112(b) (the

“Motion”). In support of the Motion, the Debtor would show:

1. On August 19, 2008, Affinity filed its voluntary petition for relief under Chapter 11

of Title 11 of the United States Bankruptcy Code.

2. On August 28, 2008, Decisioning filed its voluntary petition for relief under

Chapter 11 of Title 11 of the United States Bankruptcy Code.

3. After motion by the Debtors, this Court entered an Order for Joint Administration

of the Affinity and Decisioning Chapter 11 cases on November 14, 2008.

4. Affinity and Decisioning are Delaware corporations operated from the same

office in Columbia, South Carolina. The Debtors are affiliates as that term is defined in §101(2)

of the Bankruptcy Code and as used in Bankruptcy Rule 1015.

Affinity owns 100% of the

outstanding shares of Decisioning. Decisioning has no creditors, and its only assets are patents

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which formed the basis of Affinity’s operations. Decisioning is not an operating entity, rather its

sole function is to act as the owner of these patents.

5. The Debtors are operating their businesses and managing their assets as debtors in

possession pursuant to §§1107(a) and 1108 of the Bankruptcy Code.

6. Pursuant to South Carolina Local Bankruptcy Rule 2081-1(a)(1) a disclosure

statement and plan of reorganization should be filed in a chapter 11 case not later than 180 days

after the petition date.

Pursuant to this Local Rule, the last day for Affinity to file a plan and

disclosure statement was February 17, 2009 and the last date for Decisioning to file a plan and

disclosure statement was February 24, 2009.

7. The primary remaining asset of the Debtors are the patents held by Decisioning.

The purpose for the Debtors’ Chapter 11 filings was to allow the Debtors the time to market and

sell the patents in order to create a distribution to their creditors.

Due to economic conditions,

the Debtors have been unable to find a purchaser for the patents and have been unable to

formulate confirmable plans of reorganization prior to the time set forth in South Carolina Local

Bankruptcy Rule 2081-1(a)(1).

8. Because the Debtors cannot find a purchaser for the patents, they cannot

effectuate a confirmable plan of reorganization.

The Debtors were unable to effectuate a

confirmable plan of reorganization within a reasonable time, and the Debtors believe that the

best course of action is for their bankruptcy cases to be dismissed to allow their creditors to

exercise their state court remedies against the Debtors and the patents.

9. 11 U.S.C. §1112(b)(1) provides, in relevant part, that “on request of a party in

interest, and after notice and a hearing,

[chapter 11]

if the movant shows cause.”

the court

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[may]

dismiss a case under this

Case 08-04979-dd

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10. A debtor is a “party in interest” entitled to bring a motion to dismiss a Chapter 11

case. See In re Page, 118 B.R. 456 (Bankr. N.D.Tex. 1990).

11. “Inability to effectuate a plan,” which means that a debtor lacks the ability to

formulate or carry out a plan, is “cause” for conversion or dismissal of a Chapter 11 case. See In

re Dark Horse Tavern, 189 B.R. 576 (Bankr.N.D.N.Y. 1995).

12. When a debtor requests dismissal of its voluntary Chapter 11 case, such relief

should be granted unless a party opposing the relief establishes that “plain legal prejudice” to

creditors would otherwise result.

See In re Mazzocone, 183 B.R. 402 (Bankr.E.D.Pa. 1995),

affirmed 200 B.R. 568.

In this matter, the Debtor asserts that no such “plain legal prejudice

exists.” The Debtor further notes that, upon information and belief, BOA, the Debtor’s primary

creditor, consents to the dismissal of the Debtor’s Chapter 11 Bankruptcy case.

WHEREFORE, having shown that dismissal of its voluntary Chapter 11 Bankruptcy

Case is just and proper, the Debtor requests an order dismissing its bankruptcy proceeding and

further requests such other relief as the Court may deem appropriate.

RESPECTFULLY SUBMITTED on this the 21st day of April 2009 at Columbia, South

Carolina.

McCARTHY LAW FIRM, LLC.

BY:

/s/Daniel J. Reynolds, Jr

G. William McCarthy, Jr., #2762

Daniel J. Reynolds, Jr., #9232 Sean P. Markham, #10145 Attorneys for the Debtor 1715 Pickens Street

P. O. Box 11332

Columbia, South Carolina

(803) 771-8836

29211-1332

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